Little compensation for redundant worker denied thousands in JobKeeper payments

A consultant has been awarded less than $1000 in compensation despite the Fair Work Commission finding his dismissal by way of redundancy, which was actioned in April little more than a week after the unveiling of the JobKeeper wage subsidy program, not to be genuine.

The worker had been employed by the vehicle leasing management company for approximately seven months in late-March when Government-imposed COVID-19 restrictions meant the employer’s business effectively “dried up overnight”. After 23 March, the employer demonstrated a “substantial decline” in sales, identifying a reduction of 50% in settlements and 30% in retention (of leases), leading the employer to make the consultant, as well as two other workers, redundant on 9 April.

Although Commissioner Bissett accepted that the role the consultant had been performing was no longer being done by anyone, the Commissioner assessed that the employer failed to observe an appropriate consultation process as required by the Clerks Award, and this meant the redundancy could not be found to be genuine.

Despite the employer referencing the uncertainty the business faced at the time, the Commissioner found that the employer failed to engage in any discussion with the consultant regarding the redundancy which meant no alternative options could be presented or considered. The Commissioner observed:

“It cannot be known what might have come out of a proper consultation process with all of the staff affected by the change. It may be that staff would have proposed a reduction in hours or some other steps that may have kept [the consultant] in employment. It cannot be known what proposals [the consultant] (or others for that matter) may have put forward as a means of securing his employment. He may, for example, have offered to take leave with or without pay until the situation was better understood, or until it was known how JobKeeper, having been announced on 30 March 2020, would operate and if [the employer] would be eligible for it. As it was, none of this occurred.”

Necessarily finding the termination to be unfair, Commissioner Bissett sought further submissions from the parties as to remedy.

The consultant argued that the employer should have participated in the JobKeeper scheme in order to maintain his employment, claiming he had envisaged being employed by the company for “five years” as they had been seeking an employee who could make a long term commitment when he was employed. Commissioner Bissett however, said this did not assist in determining how much longer he would have been employed had he not been dismissed, adding that it was not the Commission’s role to speculate on the future.

Commissioner Bissett acknowledged that “COVID-19 was a disruption that no business could have planned for at the time [the consultant] was engaged” adding, “its longer term effects on employment are yet to play out.” Ultimately, despite shortcomings in process, the Commissioner accepted the employer’s argument that when it dismissed the consultant, “it was reviewing all employees’ roles on a daily basis”, and that, even if the employer had complied with its consultation obligations, it would likely have remained of the view that the consultant’s position was no longer required and dismissed him on the basis of redundancy.

The Commissioner concluded that, subject to proper consultation having occurred, the consultant would have remained in employment for a further week, awarding him $961.54 in compensation, plus superannuation.

Browne v MySharedServices Pty Ltd [2020] FWC 4445 (26 August 2020)

Browne v MySharedServices Pty Ltd [2020] FWC 5279 (2 October 2020)